93 Decision Citation: BVA 93-05849
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-01 094 ) DATE
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THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
W. Pope, Counsel
INTRODUCTION
The veteran had active service from August 1974 to September
1978, and from January to May 1981.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a June 1990 rating decision of the
Albuquerque, New Mexico, Regional Office (RO) of the Depart-
ment of Veterans Affairs (VA). A notice of disagreement was
received in July 1990. The statement of the case was issued
in September 1990. The veteran was present for a hearing
before a hearing officer at the RO in December 1990. The
hearing officer's decision was signed on October 7, 1991. A
supplemental statement of the case was issued on October 15,
1991. A substantive appeal was received in December 1991.
The appeal was initially received at the Board on February
28, 1992, and docketed on March 2, 1992. On March 4, 1992,
the claims file was charged to the veteran's representative,
and a brief on appeal was submitted on the veteran's behalf
by the Disabled American Veterans in April 1992. In June
1992, the Board remanded the appeal to the RO for further
development. The appeal was again received at the Board on
September 28, 1992, and docketed on October 1, 1992. On
October 8, 1992, the claims file was charged to the
veteran's representative, and the Disabled American Veterans
submitted another brief on appeal on October 15, 1992.
CONTENTIONS OF APPELLANT ON APPEAL
In essence, the veteran and his representative contend that
service connection should be established for post-traumatic
stress disorder because it was initially incurred during his
service aboard a United States naval vessel in Vietnam. At
various times, the veteran has reported that while aboard
ship in Vietnam he watched hundreds of refugees drown and
hundreds of refugees eaten by sharks, that he was "always
the first man on damage control teams" to report to and
fight shipboard fires "due to incoming shells and rocks and
mortars," and that he saw some of his shipmates injured by
enemy shrapnel. The veteran reports that he has nightmares
and flashbacks of experiences in Vietnam and a chemical
explosion in May 1989, and that PTSD has been diagnosed.
The veteran's representative asserts that this case should
be remanded in order to provide the veteran with an
examination by two VA psychiatrists, as requested in the
Board's June 1992 remand.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review of all evidence and material
of record in the claims file, and for the reasons and bases
hereinafter set forth, it is the decision of the Board that
a preponderance of the evidence is against the claim for
service connection for PTSD.
FINDINGS OF FACT
1. The RO has requested all evidence for proper adjudication
of the issue on appeal.
2. A stressor for PTSD during military service has not been
documented.
3. The only psychiatric disability diagnosed during service
was passive-aggressive personality.
4. The evidence does not establish that the veteran has
PTSD as a result of active military service.
CONCLUSION OF LAW
The veteran does not have PTSD as the result of disease or
injury which was incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104
(West 1991); 38 C.F.R. § 4.126 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the veteran has presented a
claim which is well grounded, and that the RO has attempted
to secure all evidence in pursuit of an equitable evaluation
of the veteran's claim. 38 U.S.C.A. § 5107.
The veteran's service medical records are negative for find-
ings of PTSD. Although a passive-aggressive personality was
diagnosed in April 1977, personality disorders are not
diseases or injuries within the meaning of applicable
legislation for veterans' benefits. 38 C.F.R. § 3.303(c).
The Board notes that during the veteran's April 1977
psychiatric examination, the psychiatrist reported "no
evidence of psychosis or neurosis." During a subsequent
examination in February 1978, it was reported that the
veteran had difficulty accepting a divorce from his wife.
The examiner found "no evidence of neurosis or psychosis"
and agreed with the prior psychiatric evaluation that the
veteran "does exhibit some passive-aggressive tendencies."
The first evidence concerning PTSD was the veteran's claim
for service connection received in September 1989.
Documents from Michael Wheeler, Ph.D., a counselor at the
Albuquerque Vet Center, indicated that the veteran was
receiving counseling for a "current assessment" of PTSD from
trauma in service, recently exacerbated by an industrial
accident. An August 1989 statement from Gerald B. Demarest,
M.D., received in December 1989, disclosed that the veteran
had been treated at the University of New Mexico Burn Center
for burns suffered in an explosion in May 1989.
Dr. Demarest reported that the veteran's "recovery may have
manifested symptoms" of PTSD as related to his experiences
in Vietnam, brought on by the recurrence of trauma and the
stress of his burns.
A report of VA hospitalization from October 1989 to January
1990 produced diagnoses including PTSD, a single episode of
major depression with psychotic features, a past and current
history of drug abuse, alcohol abuse, and a history of
multiple injuries from a chemical explosion in May 1989. At
the time of admission, the veteran reported that since his
severe trauma and painful burns, due to a chemical explosion
and fire in May 1989, he experienced exasperation of PTSD
symptoms, severe anxiety and depression. He reported that
while aboard the U.S.S. Tuscaloosa in the waters of Vietnam,
he was involved in evacuating United States and Vietnamese
people, and claimed that they picked up individuals with
chests of gold and abandoned the poor people. He stated
that he was subjected to shelling, ship's fires and saw
military and civilian people killed. During hospitalization
he admitted to visual and auditory hallucinations. A state-
ment from a VA physician, dated in August 1990, indicated
that he had treated the veteran at the medical center from
October 1989 to January 1990, where the veteran "described
severe stress while in Vietnam, being subjected to shelling,
fires and deaths of civilians and U.S. personnel." The
doctor expressed the opinion that the veteran had PTSD
related to military service, which was exacerbated by the
chemical explosion and fire in May 1989. Another statement
from a counselor at the Albuquerque Vet Center, dated in
September 1990, reported that the veteran was receiving
counseling and had symptoms of intrusive thoughts, night-
mares, depression, irritability, memory impairment, isolation
and alienation.
During a hearing, before a hearing officer at the RO in
December 1990, the veteran reported that while in the waters
of Vietnam he had been aboard small watercraft that would
"many times...just pull right up on shore..." and assist
Vietnamese, while North Vietnamese were attacking and
sending in rocket fire and mortar fire. He also testified
that some of his shipmates "were injured with some burns,
and some shrapnel, and stuff." The veteran also testified
that while the U.S.S. Tuscaloosa stayed overseas for about
eight months after the evacuation, he was flown home after
they pulled into Japan because he was "mentally unstable."
He asserted that it was the first time that "anyone had ever
been sent home from a tour like that right away, and I was
sent home and debriefed, and then they never treated me for
anything..." Upon questioning during the hearing, the
veteran indicated that he did not have contact with anyone
who had lived during that period "such as shipmates" who
could corroborate his statements.
When this appeal was initially presented to the Board with
the foregoing evidence of record, it was felt that a remand
was in order to fulfill the VA's statutory duty to assist
the veteran in the development of facts pertinent to his
claim pursuant to 38 U.S.C.A. § 5107. Accordingly, a June
1992 remand by the Board called for a very specific sequence
of information and development. At that time, a major diffi-
culty in the veteran's claim was the fact that the only
diagnosis of PTSD was based upon a history provided by the
veteran. However, an award of service connection for PTSD
requires that a current diagnosis be established which
conforms to the Diagnostic and Statistical Manual of Mental
Disorders, (3rd ed., rev. 1987) (DSM-III-R) of The American
Psychiatric Association; such a diagnosis is required by 38
C.F.R. § 4.126 (1992). An award also requires that there
have been a verifiable "stressor" for PTSD. The manual
defines a stressor as a life-threatening circumstance or
other event that is outside the range of usual human
experience and would be markedly distressing to almost
anyone. Id. at 247-248. Since PTSD can be caused by events
occurring before, during or after service, it is the
relationship between the stressors that occur during
military service and the current symptomatology that will
govern the question of service connection. A clear
relationship must be established between current symptoms
and the military stressor.
The need to verify a "stressor" during service was compounded
by the clinical information indicating that the veteran
underwent "severe trauma and painful burns" due to a chemical
explosion and fire many years after his separation from
service in May 1989.
While the veteran's service medical records confirm that he
was aboard the U.S.S. Tuscaloosa from December 1974 to
December 1976, there is no objective evidence substantiating
any of his contentions concerning his reported "stressors"
from his service in Vietnam. The veteran's Certificate of
Release for Discharge from Active Duty (DD Form 214) for his
first period of service, disclosed that his military
occupational specialty was "Machinery Repairman." His sole
decoration consisted of a National Defense Service Medal.
In order to obtain evidence establishing a verifiable
"stressor" concerning the veteran's claim, the Board's June
1992 remand "in essence" directed that the RO: Obtain
specific information concerning the alleged stressors from
the veteran which occurred on the U.S.S. Tuscaloosa; send
the specific information provided by the veteran, along with
additional service records, to an organization for verifica-
tion of the stressors; and, after receipt of the information
from the military support group, provide the veteran with an
examination by a panel of two psychiatrists to "clarify the
diagnosis of the veteran's psychiatric disorder," including
a possible diagnosis of PTSD. After receipt of the Board's
remand, the RO sent a letter requesting the specific informa-
tion concerning stressors to the veteran on July 1, 1992.
The only response from the veteran was a request for a copy
of his VA claims file received on July 28, 1992. The RO
sent a copy of the information requested to the veteran on
August 5, 1992. Following the lack of further response from
the veteran, the appeal was returned to the Board in
September 1992.
Obviously, without the cooperation of the veteran, the Board
is unable to assist him as required under 38 U.S.C.A. § 5107.
Therefore, contrary to the representative's request, the
Board finds that there is nothing about the evidence of
record which would call for additional development through a
VA psychiatric examination.
The Board wishes to point out that histories of the U.S.S.
Tuscaloosa from 1974 to 1975 were provided by the current
commanding officer in September 1977 and from the Dictionary
of American Naval Fighting Ships (Volume VII, 1981). From
these histories, it appears that the U.S.S. Tuscaloosa's
only participation in Operation "Frequent Wind," the evacua-
tion of Saigon, was the transfer of 280 sailors who were
stranded in Subic Bay, Republic of the Philippines, when
their carriers pulled out hurriedly to participate in
"Frequent Wind." The Tuscaloosa left Subic Bay on April 22,
1975, and transported the 280 sailors to their respective
aircraft carriers in time to participate in support of
Operation "New Life," the escorting of 26 former South
Vietnamese Navy ships to the Republic of the Philippines.
The only indication of weapons exchange during that time was
gunfire from the U.S.S. Tuscaloosa sinking two unseaworthy
Vietnamese ships to eliminate possible hazards to navigation.
Clearly, the histories as recorded provide no basis to con-
clude that the veteran suffered life-threatening experiences
or events outside the range of usual human experience in
service. Wood v. Derwinski, l Vet.App. 1990 (1991). The
vague details about the claimed stressful incidents in
service cannot be confirmed.
In the absence of any basis of finding a verified "stressor"
during service, the diagnosis of PTSD from an examiner who
relied entirely on the veteran's claimed stress-provoking
incidents in arriving at his diagnosis is not supportable.
Thus, the Board concludes that the greater weight of the evi-
dence is against the veteran's claim for service connection
for PTSD.
ORDER
Service connection for PTSD is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(Member temporarily absent) U. H. ANG, M.D.
STEPHEN L. WILKINS
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.